Searching Mobile Phones

Privacy Violation and Legal Breach

Thursday, February 15, 2024
Searching Mobile Phones

Legal Support Officer

Mosa Hussein Al-Akhali

 With the technological advancement and continuous technical updates of mobile phones, which have become an integral part of contemporary human life due to the current technological leap, on personal, professional, and even financial levels.

It became evident with the onset of conflict and the proliferation of areas of influence in Yemen that certain security authorities persisted in violating the privacy of civilian citizens by searching their mobile phones at security checkpoints or police stations, as well as by eavesdropping on Yemeni's calls by regulatory authorities. Here, one might ask: What is the extent of the legal legitimacy of this action? And does Yemeni law provide protection to ensure the non-infringement upon the private lives of citizens and the confidentiality of their personal and familial matters?

The provisions and principles of Yemeni law have ensured protection for citizens' wireless communications, including the protection of their phones and their contents. The Yemeni Constitution, in Article 53, affirms the freedom and confidentiality of postal, telephonic, telegraphic correspondences, and all means of communication. Monitoring, searching, disclosing the secrecy, delaying, or confiscating them is not permissible except in specific cases defined by law and with a judicial order.

The provisions of the Criminal Procedure Law have also affirmed this right, emphasizing that individuals, residences, postal correspondences, wired and wireless conversations, and personal discussions are inviolable. The sanctity of correspondences prohibits access to them during their transmission or transfer from one person to another, whether postal or telephonic. It is not permissible to search individuals or enter residences, access postal correspondences, record wired or wireless conversations, or personal discussions, and seize items except by order of the public prosecutor during investigation and by the judge during trial.

As for the right to surveil telephone and wireless communications, the law has confined this authority exclusively to the public prosecution, subject to strict conditions. These conditions mandate that call surveilling or recording must be essential to uncovering a specific crime. When issuing such an order, the public prosecution must explicitly state the reason for surveilling telephone communications, and the duration of telephone communication surveillance should not exceed thirty days.

If a person is suspected of a crime, security agencies are not entitled to search their phone. However, if the person is referred to the public prosecution on specific charges and a prosecutor deems it necessary to search their phone to extract specific evidence, the prosecutor must first document their decision to search the phone in the investigation report. Subsequently, the search should be conducted within the scope of the alleged crime and to achieve investigatory results, without exceeding o unrelated applications on the phone. For instance, if someone files a complaint of defamation against another person, alleging the use of WhatsApp for defamation, the prosecutor, if deciding to search the phone to verify messages between the complainant and the accused, must document this decision in the report. Then, they should search messages on WhatsApp only, excluding other applications, and record all procedures in the investigation report.

What is done by security checkpoints in terms of stopping individuals, requesting their phones, and searching them is considered a violation of the law. Security checkpoints or personnel affiliated with security administrations and various security agencies do not have the right to request and search citizens' mobile phones. If such an action is taken by any individual at security checkpoints, it constitutes a violation of the sanctity of correspondence, according to Article 255 of the Yemeni Criminal Law. This article penalizes anyone who unlawfully opens or withholds correspondence sent to others, seizes or destroys a telegraphic or telephonic message, or informs others of the contents of any message with imprisonment for a term not exceeding one year or a fine. If any of these actions are committed by a public official, the punishment is intensified to imprisonment for a term not exceeding two years or a fine.